[GUIDE] When Your Nonprofit Can and Cannot Send An Email

[GUIDE] When Your Nonprofit Can and Cannot Send An Email

Many organizations (nonprofit and for-profit) get themselves into trouble, legally and by reputation, for abusing email. Whether it’s a solicitation or an innocuous organization update, many emails and newsletters can find themselves in a spam folder faster than you can hit send.

These issues typically stem from a misunderstanding in who and how you can and cannot email, even after procuring an email address.

Understanding Opt-Ins

When someone freely gives you their email address, they can fall into one of two categories of “permission” –

Express permission – they give you their email address because they want and expect to receive emails from you

Implied permission – a transaction occurs that involves an exchange of email addresses (such as a donation or a business card exchange)

With express permission, a user may visit your website and sign up for your newsletter. An email confirmation takes place, and they are added to your list. This is sometimes referred to as a confirmed opt-in.

Implied permission scenarios are typically unconfirmed opt-ins. For example, someone may give you a business card, and you email them later. There was no explicit request to be emailed, but they did give you their address.

In either case, you should follow CAN-SPAM guidelines. It should be noted that the CAN-SPAM Act exempts “transactional or relationship messages.” In other words, if someone makes a donation and gives you their email address, you are free to email them, even without expressly stating that you will email them. However, you should also employ email best practices to ensure that the recipient does not become fatigued or irritated by your emails, resulting in an unsubscribe or spam report.

For nonprofits, there are many different scenarios through which you could receive an email address. Here are a few of the most common, and the actions you should and should not take for each:

This is about the safest opt-in you will receive. However, if you want to make sure that the subscriber does not unsubscribe and stays engaged, be sure to give them the opportunity to sign up for one or more topic-specific newsletters, not one generic newsletter. Having multiple subscription lists will ensure that you deliver only the content they are interested in receiving.

Someone donated via our website. We asked for their email address and they gave it to us. Can we email them? Yes, but…

You should do two things:

On the sign-up form, explicitly state that by giving you their email address, they are agreeing to receive emails from you

Only send them donor-centric emails – up until the point they signal interest in other types of content

Someone signed up via our website to become a volunteer.We asked for their email address and they gave it to us. Can we email them? Yes, but…

You should do two things:

On the sign-up form, explicitly state that by giving you their email address, they are agreeing to receive emails from you

Only send them volunteer-centric emails – up until the point they signal interest in other types of content

A non-donor/non-volunteer gave us their email address via a physical sign-up form at an event. Can we email them? Yes, but…

As stated above, you should clearly state on the form by giving you their email address, they are agreeing to receive emails from you. And be sure to only send them relevant emails.

A board member gave our development staff a business card of someone they thought might be interested in organization. Can we email them? Sort of.

You cannot (should not) add them to your bulk newsletter list. However, you could email them individually, explain how you received the business card, and attempt to create/nurture the relationship. Only after they officially opt-in or donate can you add them to a bulk list.

A donor responded to a direct mail appeal and included their email address (we did not have an email address for them prior). Can we email them? Yes, but…

Once again, you should clearly state on the form that by giving you their email address, they are agreeing to receive emails from you. Only send them donor-centric emails. If they donated, they would fall within the transactional relationship-type, and CAN-SPAM regulations would not apply. However, they could still choose to mark your emails as spam if they are not relevant or engaging.

We collected business cards in a fishbowl at an event (as part of a raffle). Can we email them? Yes, but…

You can expect a high unsubscribe rate and spam reports if you immediately add them to your bulk list and start sending generic newsletters. It would be better to email them individually first and gauge their true interest.

A similar/partner nonprofit offered to share their list with us. Can we email them? No.

Those subscribers opted-in to receive emails from the sharing organization, not yours. Because no opt-in occurred, the CAN-SPAM Act prohibits this.

We bought a list of email addresses. Can we email them? No.

Because no opt-in occurred, the CAN-SPAM Act prohibits this.

Our major gift officer pulled some email addresses of people who they might want to contact off of a corporate website. Can we email them? No, but…

You could email them individually. However, don’t expect a high success rate. Because no opt-in occurred, the CAN-SPAM Act prohibits adding these addresses to your bulk list.

We purchased an email append service. Can we email the updated addresses? Probably.

As long as you can verify that the email addresses belong to the subscriber for whom you previously had an email address for, via a legitimate opt-in, and that person has not unsubscribed.

Follow these scenario guidelines to keep yourself out of trouble, and more importantly, out of the spam folder.

What other scenarios have you run into where you were unsure what you could and couldn’t do? Let me know in the comments below?

Steven Shattuck is Chief Engagement Officer at Bloomerang and Executive Director of Launch Cause. A prolific writer and speaker, Steven is a contributor to "Fundraising Principles and Practice: Second Edition" and volunteers his time on the Project Work Group of the Fundraising Effectiveness Project and is an AFP Center for Fundraising Innovation (CFI) committee member.

25 Comments

If people submit their email address at the time of entering a nonprofit pet calendar, can we email them the entry form attached as a PDF the following year, for their convenience? These emails are sent from an individual’s inbox and everyone is bcc’d, up to say 30 email addresses at a time, in 4-5 emails (around 120 people emailed).

Hi Nan, if they willingly submitted their email address I would consider that “Implied permission” but the more you tell them about what they can expect from your org in terms of email the better. For example, when they sign-up for the calendar, you could include something on the form that says “You will also receive email updates from our organization.” That will cut down on spam reports and unsubscribes. Be as transparent as possible.

I am the Membership Chair for a non-profit agency and maintain their USPS and emaiil mailing lists. They recently held a Conference and although they didn’t do any kind of opt in/opt out permission for sharing the event mailing list they are now sharing it with everyone who attended the conference. I say they cannot do this without an opt in/opt out permission and they say they can. Who is correct?

Hi Linda, that’s a little bit of a grey area. The CAN-SPAM Act of 2003 would prevent anyone from emailing to the list without an opt-in. I don’t believe distributing the list to all attendees would technically be a violation, but emailing out to it would constitute a violation.

I don’t believe there is a similar law for snail-mail addresses.

In general, I don’t think sharing either of the lists is a good idea unless all the event attendees knew that it was going to happen when they signed up for the conference.

An NPO I belong sends out emails with everyone’s e-addy in the To line, so that they are public and therefore available to everyone (spammers included!). I have said they must use the BCC line, since people have not given the organization permission to share their contact info with others. Your viewpoint is appreciated, please and thanks.

Yes, thank you, I suspected as much. It seems to me they’ve given permission to exchange emails with the organization, but are not necessarily wanting their addresses shared with other members. Anyway, better safe than sorry, in my books.

Let’s assume my non-profit wants our donation emails to follow CAN-SPAM guidelines. The regulations seem linked to specific email addresses. So if a donor has address one@me.com and unsubscribes, and later we change his email to two@me.com, can we email to him?
Or we have two accounts for the same donor, each with a different email address, and one has been marked as unsubscribed while the other receives email. When we combine the accounts, should we send or not?

Hey Doug! Legally/technically speaking, an unsubscribe applies to an email address, not a person. However, you still run the risk of annoying the person (which is probably the most important consideration).

If a donor unsubscribes one@me.com, and then later resubscribes with two@me.com, you’re fine to email since they opted-in with a new address.

If a donor has two email addresses and you know both of them, but they unsubscribe one, you’re probably still fine to email – it’s likely that they just didn’t want to receive the same email twice.

It might be worth sending a personal email just checking in to see what their preference is, rather than sending a mass newsletter and hoping it doesn’t annoy them.

If a non profit is made up of members, and they opt out of all email, can we still send them membership information, such as membership renewal reminders, election information and an electronic voting ballot, notice of the Annual General Meeting. None of these are ads or promotions. Can this be an opt in selection?

Hey Reber, this may be a gray area where you aren’t necessarily in legal danger but could damage your reputation by sending unwanted emails.

Context is important here. What did they unsubscribe to? In other words, what kind of email prompted the unsubscribe?

If they unsubscribed to a marketing message, like a newsletter or invitation, you’re probably still okay to send renewal notices, receipts, etc. – anything transactional. The CAN-SPAM Act exempts “transactional or relationship messages.”

Can someone clarify what is legal for non-profits vs a reputation issue?

I was under the impression that if we ask for a donation and don’t have anything to sell we are in the clear legally. For example if a donor gives monthly and opts out of all our emails we can still legally send an email asking for money at Christmas. They might not like that and will call in an complain and end up cancelling their monthly donation, but we are in the clear legally and it is not even grey. We have an existing relationship and the relationship is not commercial.

Tony, you cannot legally mass-email someone that has unsubscribed from mass emails, regardless of the purpose of the email you intend to send. You could, however, legally send a personal email to the unsubscribed donor soliciting a gift (or any other purpose) – but you still run the risk of annoying them because it may not be evident to the donor that it’s a personal email and not a mass-marketing email. Better to use another channel, like in-person, phone or mail to solicit an additional gift (which shouldn’t be a problem if there truly is an existing relationship).

If we are truly talking about a monthly donor who has unsubscribed from mass emails, but who is still automatically contributing each month, there is little reason to risk the relationship and that revenue for a 13th gift by email at Christmas.

You are incorrectly making a distinction between “selling/commercial” and “asking for money” – they are effectively the same when it comes to mass email.

Steve –
My team wants to use a partner – a third party technically – and give them our email list to send a separate email newsletter to our list on our behalf. Our donors did not request this newsletter but it may be of interest to them. The third party will use their own domain and IP address to send the emails and only consider opt outs from this campaign.

My concerns are multiple:
1) Donors did not opt in to this email (FAIL #1)
2) We cannot give the email to a third party (privacy violation) (Fail #2)
3) If donors opt out, we cannot verify what they are opting out of – could be all our communications not just this one. (Fail #3)
4) This is a Business Risk, A Donor Risk and a Communication Fail. No one here agrees with me.
Your thoughts? Am I over reacting?

1) This is the most important of the four. When they first became donors (assuming that’s the point in time at which you started emailing them), did they agree to receive marketing communications from you? In other words, did they check a little box on your donation form that said “I want to receive your newsletter” or did the form say somewhere “By donating you agree to receive our newsletter.” The donation itself only covers you for transactional emails, but not marketing emails. Many, many organizations don’t ask for an explicit opt-in, and instead consider the donation itself to be an opt-in.

2) This wouldn’t be as big a deal if they were sending the email as you or on your behalf since they are a partner/vendor of yours (I assume it’s a marketing or fundraising agency) but sending from their own domain/IP is not a good look and I suspect unsubscribes will be high.

3) If you don’t give the email recipient a list of things to opt-out of, they are opting out of everything when they unsubscribe.

4) Donor risk for sure. I don’t think you’re overreacting. I would be much more interested in seeing what a third party could do with a list of donors based on their demographics, recency/frequency of giving, donation amount, etc. and creating custom communications for each. One generic newsletter to a large list rarely hits the mark.

I’ve worked for a nonprofit for the past 5 years and recently started up my own business on the side that is a branch off of what services we currently provide. The new business services are also still within the mission statement of the nonprofit therefore I have the ability to rent the facility outside regular business hours. I recently sent an email to our volunteer coordinator (my coworker) of an upcoming event my business if offering onsite which she then forwarded to our volunteer contact list. She did not share this email list and all recipients were on a blind copy. One individual has taken issue and I’m wondering if this action has crossed a legal boundary? The forwarded email from our volunteer coordinator was simply an fyi with information below if anyone cared to attend the event. Thanks.

Hi Steve,
Our community had an email group (listserve) for the purpose of sharing information, education, and news. No selling/ marketing. It was run (owner/moderator) by a member and another admin from a server in her home. I am a chair for the non profit that supports that community. Last summer the owner/admin suddenly and without notice shut down the server, and has gone completely incommunicado.

We want to restart the email group and send out an opt in invitation.
1) Can we use the email addresses if she gives them to us.
2) Can we pull the email addresses from saved emails of that group?
3) Are the rules different for the community vs the non-profit supporting it?